Supreme Court Reserves Judgment On Maintainability Of West Bengal's Suit Against Centre Challenging CBI Probe

The bench, comprising Justices BR Gavai and Sandeep Mehta, heard the preliminary objection raised by the Centre and the response of the State.

Senior Advocate Kapil Sibal, appearing for the State of West Bengal, argued that the preliminary objections raised by the Union about the maintainability of the original suit cannot be delved into by the Court at this Stage.

Sibal stressed that the question that needs to be adjudicated by the Court, at this stage, is whether the plaint discloses the cause of action or not. “My learned friend has argued the later stage without first arguing whether the plaint discloses the cause of action or not.,” Sibal said and added:

“You will have to read this plaint. You have to accept the statement as it is, and on this, you can say that no cause of action arises. You cannot say something in which you dispute the issue because that is going into merits.”

It was in November 2018 when the State government withdrew its consent that allowed the CBI to conduct investigations of cases in West Bengal. In its 2021 suit, the State contended that despite revoking the consent for the central agency under the Delhi Special Police Establishment Act of 1946 (Act), the CBI continued to register FIRs in respect of offences that took place within the State.

The present suit has been filed under Article 131 of the Indian Constitution, which deals with the Supreme Court's original jurisdiction in a dispute between the Centre and one or more states.

Previously, the Union raised a preliminary objection to the maintainability of the original suit. Solicitor General Tushar Mehta, appearing for the Union, emphasized that Article 131 was designed to settle disputes between federal units of government and did not extend to the CBI, which was not a limb of the central government.

However, today, Sibal argued that, at this stage, only the cause of the action has to be seen. Taking a cue from this, he highlighted the cause of action, as given in the plaint, is that the CBI cannot enter the State of West Bengal without its consent. Sibal explained that the Union cannot allow its investigating agency to enter the State once the consent has been withdrawn. He argued that the federal principle is encapsulated in Section 6 of the Act, which talks about the consent of the State government.

“Once the State gives consent then you have the status of a police officers of that State and whatever the police officer can do under the code, you can do….Therefore, the CBI, in exercising its power under the Act, without the requisite State's consent is not only violative of Section 6 but usurping and ousting the jurisdiction of the State Police which is statutory for such offences…Such action of the defendant violate the constitutional provisions, derogates the doctrine of federalism…,” Sibal contended.

On the issue of whether CBI is independent from the Central government, Sibal stressed that this issue will be to be decided on merits and not at this stage of the suit.

Notwithstanding, he reiterated his stand that under the Act, the CBI's supervision is with the Central Vigilance Commission (CVC) only in respect of the offences related to the Prevention of Corruption Act. However, as per Section 4(2) of the Act for all other matters, the superintendence of the CBI vests in the Central Government.

Consent To The CBI Is A Privilege Granted By The State

At a later point in the hearing, Sibal also posed what be the consequences if the opposite party were to succeed on the proposition that CBI is the proper party and not the Union.

“See the consequence of that. If we make CBI a party, A131 will not lie because it has to be a dispute between the Union and the State…It is the most dangerous proposition. The proposition itself will destroy the federal structure of this country.,” he answered.

He also explored the implications if the State governments were to approach the High Court under Article 226 in every matter. “Is that the scheme of Federalism?,” he asked. Elaborating, he said that in every case where CBI Suo Motu starts an investigation, the investigation would have been done by the time relief is granted under Article 226.

Sibal also contended that the consent to the CBI is a privilege granted by the State. At this, Justice Gavai said “Law and order is normally with the State.” Agreeing with this, Sibal continued to argue that the issue of power, to not allow that privilege, lies with the State government.

Article 131 Of The Indian Constitution Should Be Widely Interpreted 

In respect of Article 131, Sibal submitted that the same provides for an independent adjudication in case of federal disputes and should be widely interpreted to advance the remedy. It is important to note that this Article reads as “Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—”

In the previous hearing, Mehta argued that the State's Special Leave Petitions under Article 136 (SLP) challenging the High Court orders are pending, and a similar issue cannot be raised in a suit under Article 131.

In this context, Sibal argued that the parties are entirely different. Adding to this, he said that as far as A131 is considered, it is a mandate. The word used is "shall" and there cannot be a stay because there are other proceedings pending before the High Court or the Top Court.

CBI Is Not The Police Force Of The Union

Before parting, Union's officer countered the submissions advanced by the State. Mehta, in his rejoinder, emphatically submitted that CBI is not the police force of the Union, and it would be a devastating statement to make.

The Bench also deliberated as to under which department the Delhi Special Police Establishment falls. Regarding this, the Court posed a volley of questions to Mehta. The Court referred to Section 5 of the Act which talks about extension of powers and jurisdiction of special police establishment to other areas by the Central Government.

It may be recalled that Sibal had argued that the supervision of the police establishment is with the Department of Personnel and Training (DoPT), as per the administrative structure of the Union. Today Sibal also stated that when a question on CBI is asked in the Parliament, it is answered by the DoPT.

However, Mehta took a stand that DoPT is only a cadre controlling authority and cannot direct the registration of the FIR. He fervently argued that there cannot be any relief pleaded against the DoPT.

At this, Justice Mehta stated: “The relief does not stop at registration….Your argumnet is that we do not direct registration. We means DoPT. But to authorise the agency to proceed to another state for investigation, who would be the authority?”

Mehta answered: “Central Government.”

J Gavai: “If you do not exercise your power under Section 5, Could the CBI go and investigate matter there?.”

Mehta: “No, unless directed by the Court.” However, he added that he is not addressing the Court on merits.

Addressing other arguments of the State, Mehta contended that there are several statutory provisions as per which the institutions are set up by the central government. He gave an example that when the state is bifurcated, and a new High Court has to be established, the central government constitutes the same.

However, the Court did not accept this analogy and said that “For High Court there is no power of superintendence, even with the Supreme Court.”

Case Details: State of West Bengal v. Union of India | Original Suit No. 4 of 2021